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MIGRATION - application for release from detention pending determination of substantive application - whether the Court has power to hear such an application

Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003

Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 239 (23 October 2003)
Last Updated: 4 November 2003


FEDERAL COURT OF AUSTRALIA
Ongel v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 239


MIGRATION - application for release from detention pending determination of substantive application - whether the Court has power to hear such an application

Migration Act 1958 (Cth) s 196(4), 501(2)

SUAT ONGEL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 682 OF 2003

SPENDER, HELY & BENNETT JJ

23 OCTOBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 682 OF 2003




BETWEEN:
SUAT ONGEL

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
SPENDER, HELY & BENNETT JJ


DATE OF ORDER:
23 OCTOBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The motion is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 682 OF 2003




BETWEEN:
SUAT ONGEL

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
SPENDER, HELY & BENNETT JJ


DATE:
23 OCTOBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
HELY J:

1 This is an appeal from a decision of Jacobson J made on 30 May 2003 which is fixed for hearing before this Full Court on 4 November 2003. The appellant is currently in immigration detention in Villawood in consequence of the cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) (`the Act') . The appellant has applied on motion for an order that he be released from detention pending the hearing of the appeal, on what might succinctly be called compassionate grounds. The appellant has offered to submit to a number of conditions if release from detention is ordered.

2 However, the Act was amended in September 2003 by the addition of subs (4) to s 196 which precludes the making of an interlocutory order for the release of a person in detention such as the appellant. It seems to me that the consequence of s 196(4) is that this Court has no power to grant to the appellant the relief which he seeks.

3 For that reason I would propose that the motion be dismissed with costs.

SPENDER J:

4 I agree with those reasons and with the orders that Hely J proposes.

BENNETT J:

5 I too agree with those reasons and the orders Hely J proposes.

HELY J:

6 The order of the Court is that the motion be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Hely & Bennett.




Associate:

Dated: 4 November 2003

Solicitor for the Appellant:
Dennis & Co






Counsel for the Respondent:
Mr T Reilly






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
23 October 2003






Date of Judgment:
23 October 2003


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